I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied his request that respondent (the district) fund the costs of his son's private services delivered by Alpha Student Support (Alpha) for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which awarded pendency services to the student.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

A CSE convened on August 20, 2021, and, after finding the student eligible for special education as a student with a speech or language impairment, developed an IESP with a projected implementation date of September 13, 2021 (Parent Ex. C).  The August 2021 CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS) in Yiddish; two 30-minute sessions per week of individual speech-language therapy in Yiddish; and two 30-minute sessions per week of individual occupational therapy (OT) in English (id. at p. 16).[1]

On September 1, 2023, the student's mother entered into a parent service contract with Alpha, wherein Alpha agreed to "make every effort to implement the recommended services" "with suitable qualified providers for the 2023-24 school year" (Parent Ex. E at p. 1; see Parent Ex. C at p. 16).[2]  The student's mother agreed to file a due process complaint notice in an attempt to obtain funding for the unilateral services, but acknowledged her liability to pay Alpha for the full amount of all recommended and delivered services in the event that he was unable to obtain funding from the district "or elsewhere" (Parent Ex. E at p. 2).  The parent service contract indicated that Alpha would provide SETSS at a rate of $195 per hour, speech-language therapy at a rate of $225 per hour, and OT at a rate of $225 per hour (id. at p. 2).

A CSE convened on January 4, 2024, and, after continuing to find the student eligible for special education as a student with a speech or language impairment, developed an IESP with a projected implementation date of January 4, 2024 (Parent Ex. D).  The January 2024 CSE recommended that the student receive 10 periods per week of group SETSS in Yiddish; two 30-minute sessions per week of individual speech-language therapy in Yiddish; and two 30-minute sessions per week of individual OT in English (id. at p. 15).

By prior written notice dated January 4, 2024, the district informed the parent of the recommendations made by the January 2024 CSE (Dist. Ex. 9).

The student's mother signed an addendum to the parent service contract with Alpha on January 4, 2024, wherein it was reflected that Alpha would begin to provide 10 periods per week of SETSS to the student, starting on January 4, 2024, rather than five periods per week as originally agreed (Parent Ex. E at pp. 3-4).

A. Due Process Complaint Notice

After the 2023-24 school year concluded, in a due process complaint notice dated July 15, 2024, the parent, through his attorney, alleged that the district failed to offer the student with a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A).  The parent alleged that the CSE recommended the continuation of the services listed in the 2021 IESP and  that he had unilaterally obtained services for the student at an "enhanced rate" and requested funding of pendency services in accordance with the stay-put provision (id. at pp. 1-2).

In a due process response dated August 20, 2024, the district provided notice that the district intended to pursue a motion to dismiss for "any and all claims or requested relief regarding implementation of the student's program under New York State Education Law §3602-c on the basis that the [IHO did] not have subject matter jurisdiction" and any claims that were not ripe (Response to Due Process Compl. Not.).  The district also noted that it intended to pursue all applicable defenses during the proceedings, including a defense pursuant to Education Law §3602-c on the basis that the parent failed to timely send a written request for equitable services by June 1 of the preceding school year (id. at p. 1).

On August 30, 2024, the district filed a motion to dismiss the due process complaint notice for an alleged lack of subject matter jurisdiction and because the parent's claims were allegedly not ripe (IHO Ex. VI).  The parent opposed the district's motion by email dated September 3, 2024 (IHO Ex. VIII).

In an amended due process complaint notice, dated October 30, 2024, the parent, through his attorney, alleged that the district failed to offer the student with a FAPE for the 2023-24 school year (Parent Ex. B).[3]  The parent contended that the district failed to implement the recommendations in the August 2021 and January 2024 IESPs for the 2023-24 school year (id. at pp. 1-2).  The parent asserted that, as the district failed to implement services, and as the parent was unsuccessful at securing SETSS and related service providers at the district's customary rate, the parent unilaterally secured his own provider at an enhanced rate (id. at p. 2).  The parent requested that the district directly fund or reimburse the "SETSS and related services mandated in the aforementioned IESP at an enhanced rate" (id. at p. 3).  The parent also reserved his right to seek reimbursement, if necessary, and reserved his right to seek compensatory education services (id.).  The parent also asserted the student's automatic entitlement to pendency based on "the aforementioned IESP" and sought funding for the services of that IESP during the pendency of the due process proceedings (id. at p. 2).

B. Impartial Hearing and Decision

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH) on November 4, 2024, and the parties appeared before the IHO on November 8, 2024 to discuss an adjournment of the impartial hearing and the status of the parent's amended due process complaint notice (IHO Decision at p. 3; Tr. pp. 1-10).

An unsigned and undated prehearing omnibus order was entered into the hearing record (IHO Ex. V).  It was indicated that the order was being "issued to set firm expectations of the Parties to resolve the matter fairly and efficiently" (id. at p. 1).  The order also indicated that parties were to raise any " known or knowable affirmative defense" in writing within 10 business days of the scheduled hearing date, and that any affirmative defenses not raised in that manner may be precluded from the impartial hearing (id. at pp. 1-2).  It was also indicated in the order that the parties were to disclose exhibits five business days before the scheduled hearing date, and that a failure to do so may have "result[ed] in:  . . . Dismissal of Petitioner's Due Process Complaint without prejudice, and/or . . . [e]xclusion of either party's proposed exhibits and/or witness testimony" (id. at p. 2).  Finally, the order indicated that the parties would be held to the matters set forth in the omnibus order, but that if either party believed that the IHO had overlooked or misstated any item in the order, to advise the IHO and the opposing party within 10 days (id. at p. 3).

By email dated November 15, 2024, the district notified the IHO and the parent of an intention to "raise the affirmative defense of Education Law §3602-(c) notice provisions and any other applicable defenses" (IHO Ex. X).

On November 18, 2024, the district filed a supplemental motion to dismiss for lack of subject matter jurisdiction (IHO Ex. VII). The parent submitted a second, undated, opposition to the district's motion on December 10, 2024 (IHO Ex. IX; see Tr. p. 14).

The parties appeared before the IHO for an impartial hearing on December 10, 2024 (Tr. pp. 11-52).

In a decision dated February 11, 2025, the IHO found that, as the parent failed to establish that he requested equitable services prior to June 1, 2023, the parent's requested relief was required to be denied, except with respect to an award of pendency services (IHO Decision).  The IHO indicated that the parent's attorney made a request during the impartial hearing to supplement the hearing record with email proof that the parent had complied with the June 1 requirement to request services in writing, but that the district objected to the late submission, and the IHO denied the parent's request (id. at pp. 4, 8).  The IHO found that the district timely raised the June 1 affirmative defense under the rules of the IHO omnibus order by sending an email to the IHO and parent notifying them of the intention to raise the defense on November 15, 2024 (id. at p. 8).  The IHO indicated that she was not persuaded by the parent's argument that the district did not actually raise the affirmative defense in the district's email, but that the district "only stated that they intended to raise the defense" (id.).  The IHO further found that the district did not waive the affirmative defense through its conduct, and that there was evidence in the hearing record to demonstrate that the parent provided his request for services for the 2023-24 school year on or before June 1, 2023 (id. at pp. 8-9).  The IHO denied the parent's claims with prejudice (id. at p. 10).  In light of the denial of the parent's requested relief, the IHO found it unnecessary to render findings on the appropriateness of the unilaterally obtained services and equitable considerations (id. at p. 9).

The IHO also indicated that the parent requested pendency services at the impartial hearing, alleging that the last agreed-upon program for the student were the recommendations in the January 2024 IESP (IHO Decision at p. 4).  The IHO found that pendency would be properly based on the January 2024 IESP, and she indicated that the pendency provision of the IDEA required a district to continue funding the student's last agreed-upon educational placement until the conclusion of due process proceedings (id. at p. 7).  The IHO ordered the district to provide ten periods per week of group SETSS in Yiddish; two 30-minute sessions per week of individual speech-language therapy in Yiddish; and two 30-minute sessions per week of individual OT in English to the student, as per the January 2024 IESP, during the pendency of this matter, to be retroactive to the filing of the due process complaint notice on July 16, 2024 (id. at p. 10).

Finally, the IHO found that the district's motion to dismiss the parent's claims due to a lack of subject matter jurisdiction and lack of ripeness was without merit, thus the motion was denied (IHO Decision at p. 6).

IV. Appeal for State-Level Review

In an appeal, the parent, through his attorney, contends that the IHO erred in dismissing his requests for relief, and erred in denying his request to supplement the hearing record during the impartial hearing.  The parent makes several contentions about the alleged infirmities of the legal framework surrounding the June 1 affirmative defense.  As applicable to this matter, the parent contends, among other things, that counsel for the district merely noticed his "intention" to raise the defense in a November 15, 2024 email, and that the parent sought to provide evidence of a June 1 parental request at the impartial hearing.  The parent further contends that the IHO was not required to bar supplemental evidence upon objection, and that the IHO should have accepted additional evidence as the hearing record was incomplete, and because it would not have prejudiced the district.  The parent further contends that the IHO erred in finding that the district did not waive its June 1 affirmative defense, because the district sent the parent a prior written notice dated January 4, 2024 that stated that the district knew that the parent was placing the student in a nonpublic school and that he was seeking equitable services.  The parent asks that the IHO's decision be reversed, that the undersigned accept the evidence that was precluded by the IHO due to untimely disclosure, for a determination the parent met the June 1 request requirement, that a finding be issued that the unilaterally implemented services were appropriate, and that the district be ordered to directly fund the unilateral SETSS provider at the provider's contracted rate.  The parent asks, in the alternative, that this matter be remanded to the IHO for a determination on appropriateness of the services obtained by the parent.

In an answer, the district asks that the parent's additional evidence not be accepted.  The district also contends that the IHO had broad discretion on how to conduct the impartial hearing, and that parties to an impartial hearing are obligated to comply with reasonable directives of the IHO.  The district also contends, among other things, that, while the parent contends that the IHO should have found the record to be incomplete, the parent should have known that a June 1 email was necessary to address the June 1 affirmative defense, which the district indicated would be raised in the due process response and in a separate email. The district also contends that the parent's general contentions with the framework of the June 1 affirmative defense are not applicable in this matter.  The district also contends that it did not waive the June 1 affirmative defense.  The district contends, in the alternative, that if it is determined that the student was entitled to equitable services, those services should be limited from the date of the prior written notice.

In a cross-appeal, the district contends that the student was not entitled to pendency services, for three principle reasons, first of which was that there was no evidence of a June 1 parental request for services and the parent cannot defeat that requirement by relying on the pendency provision and that the failure to request services is a jurisdictional defect.  Second, the district further contends that the IHO's directive regarding pendency should be "annulled" because the parent deviated from the recommendations in the January 2024 IESP.  Third, the district also contends that the pendency aspects of the final decision should be vacated because of its broader contentions that the IHO lacked subject matter jurisdiction and therefore did not have authority to issue an order on the issue of pendency.  The district asks that, in the alternative, pendency services should be provided by the district rather than the parent's preferred provider.  The district also asks that, if it is determined that the student was entitled to receive services for the 2023-24 school year, that this matter be remanded to the IHO for further findings on the appropriateness of the unilateral placement and equitable considerations.

In an answer to the cross-appeal, the parent asserts that the right to pendency services attaches automatically upon the filing of a due process complaint notice regardless of the underlying merits, and the district's attempts to raise a threshold determination through a June 1 notice misconstrues the purposes of pendency.  The parent further contends that, merely because the student may not have received all of the services in the pendency directive in the final order, this did not "defeat pendency."  The parent further contends that the district's jurisdictional challenge was already rejected by the IHO, and that the district "improperly seeks to relitigate" the IHO's finding. Although the parent sought remand in the alternative in his request for review, the parent contends that the district's alternative request for remand to the IHO should be denied.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. June 1 Deadline

With regard to the parent's arguments on appeal related to the request for dual enrollment services on or before June 1, I note that the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

Here, the parent asserts numerous theories regarding why he should not have had to show that he complied with the statute regarding parental requests for dual enrollment services, none of which are availing. The parent should have been prepared to timely disclose the request in accordance with the rules governing due process proceedings.  First, the administrative record shows that the district notified the parent's attorney and the IHO that it intended to raise the June 1 affirmative defense through its August 20, 2024 response to the parents' due process complaint notice (Response to Due Process Compl. Not. at p. 1).  Then, on November 15, 2024, the district emailed the parent's attorney and the IHO reiterating the district's plan to raise the June 1 defense (IHO Ex. X).  Most importantly, during the December 10, 2024 impartial hearing, counsel for the district carried through with the plan to raise the defense and argued that there was no evidence that the parent had sent the district a request for dual enrollment services and therefore failed to comply with Education Law § 3602-c (Tr. pp. 15-16, 37-38).  The IHO correctly found the parent was on notice that the June 1 defense would be raised as the district asserted the defense in its November 15, 2024 email and the parent was given the opportunity to timely disclose and present evidence before the December 10, 2024 hearing to that effect (IHO Decision p. 8).  The district's assertion of the June 1 affirmative defense during the impartial hearing showed that it did not waive its defense.[6]

As part of the parent's appeal, the parent argues that the IHO erred by failing to admit the parent's June 1 letter into evidence, attaching a copy of the document to the request for review and asking that it be accepted into evidence.  The hearing record makes clear that the IHO issued an omnibus order which clearly directed the parties to disclose exhibits five business days before the scheduled hearing date, and indicated that a failure to do so may have "result[ed] in . . . [e]xclusion of either party's proposed exhibits" (IHO Ex. V at p. 2).  More to the point, this prehearing order is consistent with the rules for disclosure of evidence in due process proceedings in both State and federal regulation (8 NYCRR 200.5[j][3][xii]; see 34 CFR 300.512[a][3]). During the beginning of December 10, 2024 impartial hearing, the parent's attorney offered eight exhibits as evidence without objection from the district, which were then admitted by the IHO (Tr. pp. 21-23).  None of these eight exhibits were the parent's June 1 letter (id.).  Separate and apart from the parent's offering of those exhibits was an additional offering to "supplement the [hearing] record with the actual e-mail proof that the parent did comply . . . with the June 1st notice," which was being offered for the first time, outside of the required timeline for disclosures in this matter (Tr. pp. 23-25).  When the IHO asked the parent's attorney, at the beginning of the impartial hearing, if the parent had received the district's November 15, 2024 email notifying the IHO and the parent of an intention to raise the June 1 notice, the parent's attorney admitted that he had received the email which he alleged "sa[id that the district] intend[ed] to raise it[, but that it was] not actually a raise" (Tr. pp.15-16).  The parent reiterates this contention on appeal, claiming that counsel for the district "only noticed his 'intention' to raise the June 1 defense without confirming whether or not the defense was actually raised" (Req. for Review at p. 2).  Having reviewed the November 15, 2024 email, which sufficiently conveyed that the district was asserting the June 1 notice provisions, I find the parent's attorney's argument to be unavailing (see IHO Ex. X).

The parent's attorney further argued that the parent's initial disclosures were made before the June 1 affirmative defense was raised (Tr. p. 24).  I find this point to be unpersuasive.  First, as noted above, the district first indicated that it would raise the defense in August 2024 in its response to the due process complaint notice, which was long before the impartial hearing was scheduled.  Next, according to the IHO's omnibus order and State regulation, the parties had until five days before the impartial hearing to disclose their evidence.  The district's November 15, 2024 email was sent to the parent's attorney three weeks before the December 10, 2024 impartial hearing, giving the parent's attorney ample time and notice to include the June 1 email with the parent's disclosures.  The parent's attorney received the district's November 15, 2024 email notifying the parent of the district's intent to assert the June 1 affirmative defense and the parent's attorney elected not to timely submit a disclosure that would rebut the district's assertion, but rather attempted to submit the untimely disclosed June 1 letter after the impartial hearing had already begun (Tr. pp. 23-25).  The district permissibly objected to the parent's attempted submission of additional documentation after the five-day deadline for disclosure of evidence had passed and the hearing (Tr. pp. 23-24).  The IHO acted within her discretionary authority to preclude the parent's late disclosure and submission of evidence (Tr. pp. 24-25).[7]

Here, the IHO correctly found that the parent failed to adhere to the five-day disclosure requirement for evidence after the district informed the parent two occasions well before the impartial hearing that it intended to pursue its defense, and after the IHO reminded the parties of the five-day disclosure rule. Accordingly, the parent failed to show that he complied with the provision governing parental requests for dual enrollment under Education Law § 3602-c because the parent failed to timely enter evidence into the hearing record establishing that he made a timely request for equitable services (IHO Decision at pp. 8-9).

Additionally, the district is not necessarily required to prove a negative regarding a State law requirement for a written request that was imposed on the parent, and I find the parent's contentions with respect to district's burden to establish the affirmative defense to be without merit (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] [noting that "it is unclear how the school district could have proved such a negative"]).

B. Pendency

Turning to the parties' dispute over pendency, I note that the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[8]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

With respect to the district's contentions on appeal that IHOs lack subject matter jurisdiction to award pendency, this contention is without merit and has been examined in prior decisions (see, e.g., Application of a Student with a Disability, Appeal No. 25-296 [finding the IHO's jurisdictional reasoning to be without merit, where the IHO improperly found that she lacked subject matter jurisdiction over claims under Education Law §3602-c, and consequently found that she did not have authority to issue findings on pendency] Application of a Student with a Disability, Appeal No. 25-035 [rejecting "the district's argument that the student [wa]s not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c"]; Application of a Student with a Disability, Appeal No. 24-579 [rejecting the district's argument "that the student was not entitled to pendency services because the IHO [] lacked subject matter jurisdiction to order the district to maintain the student's pendency services"]).

With respect to the district's alternative argument that, if necessary, pendency should be provided by the district instead of by the parent's preferred private provider a careful reading of  IHO's decision shows that it stated:

(1) As a matter of pendency, it is hereby ORDERED, retroactive to the filing of the DPC (07/16/2024), that the DOE shall provide during the pendency of this matter, the following program in accordance with Student's Individualized Education Program ("IESP"), dated January 4, 2024 . . . :

Special Education Teacher Support Services (ten periods per week, group service, in the Yiddish language)

Speech-Language Therapy (two times per week for 30-minute sessions, individual service, in the Yiddish language)

Occupational Therapy (two times per week for 30-minute sessions, individual service in the English language)

(IHO Decision at p. 10).  With respect to the district's concern, there is nothing in the IHO decision directing that pendency must be administered by a provider of the parent's choosing (see id.).  Likewise, there is no indication in the hearing record that Alpha, or another preferred provider, was determined to be appropriate in the past in an unappealed IHO decision or State-level review decision in the parent's favor that would require the district to fund the services from Alpha as requested by the parent.

As described above, the parent made unilateral arrangements to obtain private services from Apha for the student, and thus it was the parent, not the district that altered the status quo for purposes of stay-put.  Accordingly, I find that there was no need for the IHO to issue a ruling on pendency, and I will vacate the order, even if it merely identified what pendency would have been had there been no unilateral action by the parent.

VII. Conclusion

In summary, the parent was offered the opportunity to present evidence regarding the June 1 request for dual enrollment services and, despite the ample notice by the district of the defense, failed to offer the evidence as required.   I find no reason to disturb the IHO's discretionary determination to preclude the parent's evidence in violation of the disclosure requirements or the ultimate dismissal of the parent's claims.  However, the parent made arrangements to unilaterally obtain private services without the consent of school officials and is not entitled to the costs of those services under a pendency theory, and I will vacate the IHO's pendency determination as unnecessary.  I have considered the parties' remaining contentions and find the necessary inquiry at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated February 11, 2025 is modified by vacating that portion which directed the district to provide pendency services to the student.